Artificial Intelligence and Human Rights Due Diligence – Part 1. Integrating AI into the HRDD process - By Samuel Brobby

Editor's note: Samuel Brobby graduated from Maastricht University's Globalisation and Law LLM specialising in Human Rights in September 2020. A special interest in HRDD carries his research through various topics such as: the intersection between AI and HRDD, the French Devoir de Vigilance or mHRDD at the EU level. Since April 2021 he has joined the Asser Institute as a research intern for the Doing Business Right project.


The recent surge in developments and debate surrounding Artificial Intelligence (AI) have been business centric, naturally so. The conversation has long been centred on the possible gains “digitally conscious” companies can recoup from their sizeable investments in the various forms this technology can take. The ink continues to flow as numerous articles are released daily; debating between the ultimate power of artificial intelligence (and topical subsets like machine learning) on the one hand, versus the comparatively more philistinish views regarding what these technologies can offer on the other. Our objective here is not to pick a side on the AI debate. Rather, we would like to explore the Business & Human Rights implications of the development of AI and, in particular its intersection with the human rights due diligence (HRDD) processes enshrined in the UN Guiding Principles on Business and Human Rights and subsequent declinations. How compatible is AI with HRDD obligations? Where does AI fit into the HRDD process? Can AI be used as a tool to further HRDD obligations? Can the HRDD process, in return, have an effect on the elaboration and progress of AI and its use in transnational business? And, to which extent will the roll out of AI be affected by HRDD obligations? These are all questions we hope to tackle in this blog.

In short, it seems two distinct shifts are occurring, rather opportunely, in close time frames. The impending mass adoption of AI in transnational business will have strong consequences for the state of Human Rights. This adoption is not only substantiated by an uptick of AI in business, but also in policy documents produced or endorsed by leading institutions such as the ILO or the OECD for instance. Inversely, we must consider that HRDD obligations elaborated by the BHR community will also have strong implications for the development and roll out of AI. These two transformations will interact increasingly as their positions are consolidated. It is these interactions that we wish to analyse in the two parts of this article. Namely, the emergence of Artificial intelligence as a tool to shape and further HRDD obligations (1) and the emergence of HRDD as a process to shape the development of AI (2). More...


New Event! Human Rights and the Immunity of International Financial Institutions - Reflections on Jam v. IFC - 24 April - Asser Institute

On 27 February 2019, in a 7-1 decision, the US Supreme Court made an end to the absolute immunity from suit that international organisations (IOs) had consistently enjoyed in US courts. The decision realigns the immunity regime for IOs with that for foreign states, which leaves the opportunity to sue organisations such as the International Finance Corporation (IFC) when they engage in commercial activities. In a flare of enthusiasm among academics and (human rights) activists, the decision was immediately granted a landmark​ status and marked as a turning point in the long history of impunity for social, ecological and human harm caused by the activities of IOs. This Doing Business Right Talk ​will summarise the reasoning in the decision and explore the foreseeable effects on the legal accountability of IOs, and international financial institutions in particular. The most immediate effect, in that sense, might not be located on the avenue of adjudication, but in the various accountability mechanisms that have been created within IOs themselves.


Dimitri van den Meerssche is a researcher in the Dispute Settlement and Adjudication strand at the T.M.C. Asser Instituut. His research reflects on the law of international organisations, international legal practices and technologies of global governance. This work is inspired by insights from science and technology studies, performativity theory and actor-network theory. Dimitri is currently finalising his doctoral dissertation at the European University Institute, which he expects to defend in winter 2019. His dissertation is entitled “The World Bank’s Lawyers – An Inquiry into the Life of Law as Institutional Practice”. In the context of this dissertation, Dimitri has worked for three months at the World Bank Legal Vice-Presidency and spent one semester as visiting doctoral researcher at the London School of Economics.


When: Wednesday 24 April 2019 at 16:00

Where: Asser Institute in The Hague

Register Here

Doing Business Right – Monthly Report – February 2018 - By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice.

 

Introduction

This report compiles all relevant news, events and materials on Doing Business Right based on the coverage provided on our twitter feed @DoinBizRight and on various websites. You are invited to contribute to this compilation via the comments section below, feel free to add links to important cases, documents and articles we may have overlooked.

 

The Headlines

German Development Ministry drafts mandatory human rights due diligence

It was reported on 10 February 2019 that the German Federal Ministry of Economic Cooperation and Development has drafted legislation (unpublished) on mandatory human rights due diligence for German companies. It is reported that the law will apply to companies with over 250 employees and more than €40 million in annual sales. The draft legislation targets, inter alia, the agriculture, energy, mining, textile, leather and electronics production sectors. Companies that fall within the scope of the legislation will be required to undertake internal risk assessments to identify where human rights risks lie in their supply chains. Companies would also be required to have a Compliance Officer to ensure compliance with due diligence requirements. The Labor Inspectorate, the Federal Institute for Occupational Safety and Health and the Human Rights Commissioner of the Federal Government would be responsible for enforcing the legislation, with penalties for non-compliance of up to €5 million (as well as imprisonment and exclusion from public procurement in Germany).

Kiobel case heard in the Netherlands

On 12 February 2019, the Dutch courts heard a lawsuit involving Esther Kiobel and three other women against Shell. The plaintiffs allege that Shell was complicity in the 1995 killings of their husbands by Nigeria’s military. The husbands were Ogoni activists that were part of the mass protests against oil pollution in Nigeria’s Ogoniland. The judgment is expected to be handed down in May 2019. Read more here. More...

Doing Business Right – Monthly Report – October 2018 - By Shamistha Selvaratnam

Editor’s note: Shamistha Selvaratnam is a LLM Candidate of the Advanced Masters of European and International Human Rights Law at Leiden University in the Netherlands and an intern with the Doing Business Right project at the Asser Institute. Prior to commencing the LLM, she worked as a business and human rights solicitor in Australia where she specialised in promoting business respect for human rights through engagement with policy, law and practice. 

Introduction

This report compiles all relevant news, events and materials on Doing Business Right based on the coverage provided on our twitter feed @DoinBizRight and on various websites. You are invited to contribute to this compilation via the comments section below, feel free to add links to important cases, documents and articles we may have overlooked. More...

Human Rights Protection and the FIFA World Cup: A Never-Ending Match? - By Daniela Heerdt

Editor’s note: Daniela Heerdt is a PhD candidate at Tilburg Law School in the Netherlands. Her PhD research deals with the establishment of responsibility and accountability for adverse human rights impacts of mega-sporting events, with a focus on FIFA World Cups and Olympic Games. She recently published an article in the International Sports Law Journal that discusses to what extent the revised bidding and hosting regulations by FIFA, the IOC and UEFA strengthen access to remedy for mega-sporting events-related human rights violations.


The 21st FIFA World Cup is currently underway. Billions of people around the world follow the matches with much enthusiasm and support. For the time being, it almost seems forgotten that in the final weeks leading up to the events, critical reports on human rights issues related to the event piled up. This blog explains why addressing these issues has to start well in advance of the first ball being kicked and cannot end when the final match has been played. More...



New Event! The Jesner ruling of the U.S. Supreme Court: The ‘end of the beginning’ for corporate liability under the Alien Tort Statute - 24 May at the Asser Institute in The Hague

The headline of the New York Times on 24 April summed it up: ‘Supreme Court Bars Human Rights Suits Against Foreign Corporations. The Jesner decision, released earlier that day by the U.S. Supreme Court, triggered a tremor of indignation in the human rights movement given the immunity it conferred to foreign corporations violating human rights against suits under the Alien Tort Statute, and led to a flood of legal and academic commentaries online. This panel discussion, organised with the support of the Netherlands Network of Human Rights Research, will address various aspects of the judgment. Its aim is to better understand the road travelled by American courts leading up to the decision with regard to the application of the Alien Tort Statute to corporations, to compare the decision with the position taken in other jurisdictions, and to discuss the ruling's potential broader impact on the direction taken by the business and human rights movement.


Where: T.M.C. Asser Instituut in The Hague

When: Thursday 24 May at 2:30 pm


Speakers:

  • Phillip Paiement (Tilburg University) - The Jesner case and the ATS: An American perspective
  • Lucas Roorda (Utrecht University) - A comparative perspective on Jesner and corporate liability for human rights violations
  • Nadia Bernaz (Wageningen University) - Lessons for the business and human rights movement after Jesner


Register here!

Ending torture and the death penalty through trade policy? The ambitious promise of the Global Alliance for Torture-Free Trade - By Marie Wilmet

Editor's Note: Marie Wilmet is a research intern in Public International Law at the Asser Institute. She recently graduated from Leiden University’s LL.M. in Public International Law. Her main fields of interest include international criminal law, humanitarian law and human rights law as well as counterterrorism.


The Alliance for Torture-Free Trade was launched on 18 September 2017, at the 72nd Session of the United Nations (UN) General Assembly, by a common initiative of Argentina, the European Union (EU) and Mongolia. It aims at ending the trade in goods used to carry out the death penalty and torture. Indeed, even though torture is unlawful under public international law, these goods are currently available on the open market across the globe. By banning such tools from global trade, the Alliance hopes to reduce the possible human rights violations by complicating the perpetrators’ acquisition of the means to execute and torture people.

This initiative is part of a broader agenda both at the UN and EU level. It falls under the broader umbrella of UN projects such as the UN Guiding Principles for Business and Human Rights or the UN Global Compact. Moreover, the EU has tried in the recent years to strengthen the rule of law by conducting policies where trade and values are more interrelated. As the EU Trade Commissioner Cecilia Malmström stated, “human rights cannot be treated as an afterthought when it comes to trade”.

This blog will first retrace the origins of the Alliance by outlining the current factual and legal framework surrounding torture, the death penalty and related trade. Then, the Alliance and its ambitions will be analysed, along with the chances of its effective implementation. More...




FIFA's Human Rights Agenda: Is the Game Beautiful Again? – By Tomáš Grell

Editor’s note: Tomáš Grell holds an LL.M. in Public International Law from Leiden University. He contributes to the work of the ASSER International Sports Law Centre as a research intern.

 

Concerns about adverse human rights impacts related to FIFA's activities have intensified ever since its late 2010 decision to award the 2018 and 2022 World Cup to Russia and Qatar respectively. However, until recently, the world's governing body of football had done little to eliminate these concerns, thereby encouraging human rights advocates to exercise their critical eye on FIFA. 

In response to growing criticism, the Extraordinary FIFA Congress, held in February 2016, decided to include an explicit human rights commitment in the revised FIFA Statutes which came into force in April 2016. This commitment is encapsulated in Article 3 which reads as follows: ''FIFA is committed to respecting all internationally recognized human rights and shall strive to promote the protection of these rights''. At around the same time, Professor John Ruggie, the author of the United Nations Guiding Principles on Business and Human Rights ('UN Guiding Principles') presented in his report 25 specific recommendations for FIFA on how to further embed respect for human rights across its global operations. While praising the decision to make a human rights commitment part of the organization's constituent document, Ruggie concluded that ''FIFA does not have yet adequate systems in place enabling it to know and show that it respects human rights in practice''.[1]

With the 2018 World Cup in Russia less than a year away, the time is ripe to look at whether Ruggie's statement about FIFA's inability to respect human rights still holds true today. This blog outlines the most salient human rights risks related to FIFA's activities and offers a general overview of what the world's governing body of football did over the past twelve months to mitigate these risks. Information about FIFA's human rights activities is collected primarily from its Activity Update on Human Rights published alongside FIFA's Human Rights Policy in June 2017. More...

Who is afraid of a binding treaty? Stumbling Blocks on the Accountability of Transnational Corporations by Sara Martinetto

Editor's note: Sara Martinetto is an intern at T.M.C. Asser Institute. She has recently completed her LLM in Public International Law at the University of Amsterdam. She holds interests in Migration Law, Criminal Law, Human Rights and European Law, with a special focus on their transnational dimension.

 

Since the adoption by the UN Human Rights Council of Resolution 26/9 in 2014, an Open-ended Intergovernmental Working Group (WG) is working on a binding Treaty capable of holding transnational corporations accountable for human rights abuses. Elaborating on the proposal presented by Ecuador and South Africa, the WG has been holding periodical sessions. In much trepidation for what is supposed to be the start of substantive negotiations – scheduled for October 23-27, 2017 – it is worth summarising and highlighting the struggles this new instrument is likely to encounter, and investigating whether (and how) such an agreement could foster transnational corporations’ (TNCs) human rights compliance. More...

Why Doing Business Right?

Doing Business has been a (if not the) core concern for the post-WWII world order, leading up to contemporary economic globalisation and the ‘free’ movement of goods, capital and ideas across the globe. With our research project, and the launch of this companion blog, we aim to shift the focus towards Doing Business Right. Thanks to the financial crisis in 2008, there is growing awareness of the fact that Doing Business can lead to extremely adverse social and economic consequences. The trust in Doing Business as a cure-all to modernize, democratize, or civilize the world is fading. Moreover, the damaging externalities prompted by the operation of transnational economic activity are more and more visible. It has become harder, nowadays, to ignore the environmental and social consequences triggered elsewhere by our consumption patterns or by our reliance on certain energy industries. What does Doing Business Right mean? How does the law respond to the urge to do business right? What are the legal mechanisms used, or that could be used, to ensure that business is done in the right way? Can transnational business activity even be subjected to law in a globalized world?

This blog will offer an academic platform for scholars and practitioners interested in these questions. With your help we aim to investigate the multiple legal and regulatory constructs affecting transnational business conduct - ranging from public international law to internal corporate practices. We will do so by hosting in-depth case studies, but also more theoretical takes on the normative underpinnings of the idea of Doing Business Right. We aim to be inclusive in methodological terms, and believe that private and public, as well as national and international, legal (and...) scholars should come together to tackle a genuinely transnational phenomenon. Future posts will cover issues as diverse as national, EU, international, transnational regulations - including self-regulation, voluntary codes, and market-based regulatory instruments  - applying to transnational business conduct. Case law from the CJEU, international tribunals (ICJ, arbitral tribunals) and national courts, as well as decisions from international organisations, national agencies (such as competition authorities) will be recurring objects of discussion and analysis. Yet, our perspective is not solely focused on the (traditional) law: management practices of  companies and their effects will also be scrutinized.

This blog is thought as an open discursive space to engage and debate with a wide variety of actors and perspectives. We hope to get the attention of those who care about Doing Business Right, and to provide useful intellectual and legal weapons for their endeavours.

The Editors:

Antoine Duval is a Senior researcher at the Asser Institute since 2014. He holds a PhD from the European University Institute in Florence in which he scrutinized the interaction between EU law and the transnational private regulation of world sport, the lex sportiva. His research is mainly focused on transnational legal theory, international arbitration, and private regulation.  

Enrico Partiti is researcher at the Asser Institute since 2017. He holds a PhD from the University of Amsterdam on private standards for sustainability. His research interest lies at the intersection of EU and international economic law on the one hand, and private regulation for sustainability on the other. He studies the interactions and reciprocal influence between transnational public and private norms, and how they determine and impact on social and environmental sustainability in global value chains.

 

 

Doing Business Right Blog | The Norwegian Transparency Act 2021 – An important step towards human rights responsibilities for corporations - By Nora Kenan

The Norwegian Transparency Act 2021 – An important step towards human rights responsibilities for corporations - By Nora Kenan

Editor’s note: Nora Kenan has been an intern at the Asser Institute for the past five months and is about to complete her LL.B. in International & European Law at The Hague University of Applied Sciences. Upon graduating, she will proceed with a Master’s in human rights at the University of Utrecht.

 

The Norwegian Transparency Act [1](‘Åpenhetsloven’), also known as the ‘Act on Business Transparency and Work with Fundamental Human Rights and Decent Work’ was proposed in April 2021. Now, two months later, the Act has officially been adopted by the Norwegian government and represents yet another mandatory due diligence initiative which has been trending across various jurisdiction in the recent years. The Act will require all large and medium-size corporations in Norway to disclose the measures taken to ensure the respect for human rights throughout their entire supply chain.

Various Norwegian organizations have been campaigning for years in favor of such a law. The official preparations began in 2017, when the Parliament (‘Regjeringen’) requested the Government (‘Stortinget’) to explore the possibility of introducing a law that would oblige companies to inform consumers about the steps that they take to follow up on various human rights responsibilities. The Government appointed a law firm as well as a group of experts, the Ethics Information Committee, to conduct thorough research on the matter, and to investigate whether there were any other legal obligations standing in the way of a proposal of this kind, such as for example EEA-obligations or bilateral/multilateral agreements. As a result of this research, it was concluded that there was indeed room for imposing human rights obligations on corporations. Shortly after, the Ethics Information Committee published a report in which they proposed the introduction of a due diligence legislation – more specifically, the Transparency Act. The Act consists of fifteen paragraphs (§)[2], and each paragraph has a commentary which further describes how it should be interpreted and applied.[3]

The objective of the law is essentially to promote corporate respect of human rights and decent working conditions in the production of goods and provision of services, as well as to ensure public access to information on the steps taken by corporations to safeguard these goals (§1). By making this information public, individuals and stakeholders in general are given the chance to directly question the activities of a company.

Key elements

The Act is based on various global standards related to human rights and business, such as the OECD Guidelines for Multinational Enterprises and the United Nations Guiding Principles on Business and Human Rights (UNGPs) – similar to other mandatory due diligence initiatives. However, this Act introduces a rather unique approach to transparency and regulatory oversight, namely the Right to Information and the Duty to Disclose. In its essence, the Act covers all the elements of human rights due diligence (HRDD), such as detecting the negative impacts of corporate activity on human rights, continuously assess and take action to mitigate these negative impacts, as well as to report about their efforts. Even though many human – and workers’ rights conventions are listed throughout the Act, such as the International Covenant on Economic, Social and Cultural Rights (ICCPR) and ILO Declaration on Fundamental Rights and Principles at Work, the commentaries emphasize that these are non-exhaustive examples and accordingly refers to, inter alia, the UN Convention on the Rights of the Child and the ILO Indigenous and Tribal Peoples Convention.[4]  The Act uses these conventions to clarify what is meant by ‘decent working conditions’, adding that ‘decent working conditions’ entails the protection fundamental human rights as according to these conventions, as well as safe and secure working conditions and an income that is sufficient for the workers to support themselves and their families (§3(c)).

Personal scope of application

The Act is applicable to all larger companies domiciled in Norway, regardless of whether they offer their products or services within the Norwegian borders. Further, foreign corporations who sell their products or services in Norway and who have tax obligations to the Norwegian government also fall within the scope of this Act (§2). In order to define a ‘large company’, the Act makes a reference to §1-5 of the Norwegian Accounting Act.[5] Alternatively, a corporation is also considered a ‘large company’ if it meets at least two of the following three requirements:

1. Turnover of at least 70 million NOK (approximately, €6.880.000 (June 2021))

2. Balance-sheet total of at least 30 million NOK (approximately, €2.950.000 (June 2021))

3. Average amount of employees in a financial year: 50 man-years (§3(a)).

The Ministry’s own calculations stipulates that this will entail approximately 8800 companies. To give an insight to the comprehensiveness of this scope, the French duty of vigilance law applies to 200-300 corporations.  

Scope of due diligence obligation

The Act imposes an obligation for companies to carry out due diligence assessments in accordance with the OECD Guidelines for Multinational Enterprises with the aim of documenting what actions they take to prevent and limit human rights risks. Essentially, such a due diligence process entails (i) the embedment of responsible business conduct into the company’s policies and management systems; (ii) mapping the actual and potential negative impacts on human rights and decent working conditions that the company has either caused or contributed to, or which are directly linked to their corporate activities; (iii) implementation appropriate measures to stop, prevent or limit negative impacts; (iv) monitoring of the implementation and results; (v) communication with the affected stakeholders about how negative impacts are dealt with; and (vi) arranging for or cooperate on remedy and compensation where this is required. The due diligence assessments should be proportionate to the size and nature of the company, and to the context in which the company operates (§4).

Right to information

As the wording of the Act reveals, the element of transparency lies at the core of this Act and is embodied in an explicitly recognized Right to Information (§6). This paragraph establishes the right, upon a written request, to receive information from a corporation on how they tackle actual and potential negative consequences of their corporate activities, be it with regards to general or specific information (§6). However, the Act establishes some exceptions in the form of grounds upon which a request for information may be rejected, such as for example if the request seems obviously unreasonable, or if it concerns commercially privileged information. Despite these exceptions, the provision remains strong in nature as it sets clear guidelines on how requests should be dealt with, and that it should, generally speaking, be handled within 3 weeks (§7). Furthermore, rejections can be appealed, and fines may be issued in case of repeated infringements by the company, meaning unreasonable denials of requests.

Duty to disclose

Hand in hand with the right to information is the duty to disclose. The Act creates a duty for corporations to disclose their due diligence processes, which must be made available and accessible on the website of the corporation and include, at the minimum: a general description of due diligence policies and routines for handling risks to human rights and decent work, information on the negative impacts identified by the company, as well as information on measures taken to cease or prevent these negative impacts and the expected results (§5). Besides disclosing information on its website and responding to requests for information, corporations must also disclose all information necessary for the Norwegian Consumer Authority (‘Forbrukertilsynet’) and the Market Council (‘Marketsrådet’) to carry out their duties (§10). The company must respect the set deadlines and provide the information orally or in writing, depending on the request. As for the requests coming from either one of these two parties, matters of corporate confidentiality are, generally speaking, to be disregarded.    

Enforcement and sanctions

The Norwegian Consumer Authority will be responsible for implementing and enforcing the law. They shall, on their own initiative or the upon inquiries from others, seek to influence corporations to comply with the law (§9). Anyone can bring a complaint with the Norwegian Consumer Authority through their website. In case of a complaint, the Norwegian Consumer Authority will forward it to the Market Council who will deal with the claim. If it is found that the corporation has not sufficiently complied with the law, the Norwegian Consumer Authority together with the Market Council may issue injunctions for non-compliance with due diligence obligations or the right to information, fines for non-compliance with the duty to disclose and for repetitive breach of due diligence obligations or the right to information (§11-14). The Act does not give the victims of human rights abuses a right to seek remedy in court. Further, it does not provide for civil liability for harm caused, which fails to live up the recent legislative and judicial developments in other HRDD initiatives.

Conclusion

Inspired by John Ruggie’s Protect, Respect and Remedy Framework and the United Nations Guiding Principles on Business and Human Rights, the Norwegian Transparency Act introduces a duty for corporations to respect human rights, which is a far-reaching step in the right direction. The adoption of a HRDD act is in itself a historical happening.  This Act primarily focuses on the element of transparency and regulatory oversight enshrined in the Right to Information and the Duty to Disclose. Additionally, the Act is not limited to a corporation and its subsidiaries but covers its entire supply chain.

That being said, there is, according to one of the member of the Ethics Information Committee, still room for improvement. First of all, the Act does not cover any environmental impacts. However, the Environment Information Act of 2003 also contains some of the elements that are present in the Transparency Act, such as the Right to Information. Yet, this might emerge as a point for improvement at a later stage. Other points of improvement relate to access to justice for victims of corporate abuses. Since the Act is focused on consumer rights, it could also be appropriate for it to include a right for individuals to bring a case against a corporation in a court. Lastly, the fact that not all corporations fall within the scope of this Act can also be a point of criticism. Arguably, the size of the company is not what determines whether or not they take part in human rights breaches throughout their supply chain. Nevertheless, the Act in its entirety constitutes a remarkable milestone which forms part of the ongoing HRDD legislative wave across various European countries.


[1] Only available in Norwegian.

[2] § means ‘Paragraph’ and is used to indicate articles in Norwegian law. One paragraph consists of multiple sub-paragraphs. 

[3] See pages 105-117 of the report.

[4] Commentary on §3

[5] Only available in Norwegian


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